Opinion
Civil No. 00-1398-HA
June 13, 2002
Danny G. Lavender, Snake River Correctional Institution, Ontario, OR, Plaintiff, Pro se.
Hardy Myers, Attorney General, Lynne D. Rennick, Assistant Attorney General, Leonard W. Williamson, Assistant Attorney General, Oregon Department of Justice, Salem, OR, Attorneys for Defendants.
OPINION AND ORDER
Plaintiff, an inmate at Snake River Correctional Institution, ("SRCI") brings this civil rights action pursuant to 42 U.S.C. § 1983, alleging that defendants violated the Eighth and Fourteenth Amendments by demonstrating deliberate indifference to plaintiff's serious medical needs, thereby causing him pain, physical injury, and permanent disability. (See Amended Complaint (#7) at 2-5, 8.) Currently before the court are the following six motions filed by plaintiff: motion/application for leave to proceed in forma pauperis (#21); motion for order to show cause (#37); motion for preliminary injunction (#38); motion for release to obtain needed medical care (#56); motion requesting medical care needed outside of SRCI (#58); and motion for appointment of counsel (#60).
BACKGROUND
Plaintiff has been in the custody of the Oregon Department of Corrections ("ODOC") since April 15, 1999. On August 25, 1981, prior to his incarceration, plaintiff suffered a gunshot wound that resulted in a chronic medical condition (partial spastic paralysis) which causes his right foot to flex and curl his toes into a claw. (Amended Complaint (#7) at 1.) Apparently surgery and custom orthopedic shoes cannot completely alleviate the condition, and plaintiff alleges that he currently suffers from chronic pain.
DISCUSSION I. Plaintiff's Motion/Application to Proceed IFP.
Although plaintiff's motion/application for leave to proceed in forma pauperis ("IFP") was offered in support of his motion for appointment of counsel, it has been treated as a separate motion. Because plaintiff's provisional IFP status has already been confirmed by this court by order dated November 22, 2000, and is still in effect, his second motion for leave to proceed IFP (#21) is denied as moot.
II. Plaintiff's Motion for Order to Show Cause.
The title of plaintiff's motion is misleading, because it actually seeks to compel discovery pursuant to Fed.R.Civ.Pro. 37(a). In his request to compel discovery, plaintiff states that he sent sets of interrogatories to defendants Ian Duncan, Lanny Ryals, Debora Beaver, Cathleen Posey, Irene Folkman, Charlene Bonner, Jackie Wick, and Tana Nugent on August 31, 2001, and that he received no response from counsel regarding these interrogatories. (Motion for Order to Show Cause (#37) at 1.) Further, plaintiff attests that on October 18, 2001, he sent a letter to defense counsel Lynne Rennick, informing her that he had not received the requested discovery, giving her a time limit of ten days to respond, and notifying her of his intention to file a motion to compel. (Id. at 2.) However, the pro se plaintiff failed to serve his motion on defense counsel, so the court is without the benefit of defendants' response.
Plaintiff's motion also seeks to compel the defendants to respond to his request for production of documents, which he certified was mailed to defense counsel on December 3, 2001, prior to the closure of discovery. See Order (#27) entered November 1, 2001 (extending discovery to December 5, 2001). Counsel responded to plaintiff in a December 13, 2001, letter that "[a]bsent a court order we will not be producing the documents because discovery has closed in this case." (Id. at attach. 3.) Plaintiff submitted his discovery request to prison officials for mailing within the deadline for completing discovery; therefore, it is deemed timely submitted. See Houston v. Lack, 487 U.S. 266, 266 (1988) (pro se prisoners' notices of appeal are "filed" at the moment of delivery to prison authorities for forwarding to the district court); see also Faile v. Upjohn Co., 988 F.2d 985, 988 (9th Cir. 1992) (extending Houston policy to filing of discovery responses).
In light of this ruling, defendants are strongly encouraged to respond to plaintiff's December 3, 2001, request for production of documents, within 14 days from the date of this order. However, because defendants have not had the opportunity to fully respond to plaintiff's motion for order to show cause, the clerk is directed to serve a copy on counsel for defendants, and defendants shall have 14 days from the date of this order in which to file their response to the motion with the court.
III. Plaintiff's Motion for Preliminary Injunction. A. Standards
A preliminary injunction is appropriate if plaintiff demonstrates either (1) a combination of probable success on the merits and the possibility of irreparable injury; or (2) the existence of serious questions going to the merits and the balance of hardship tips sharply in plaintiff's favor. Sony Computer Entertainment Am., Inc. v. Bleem, LLC, 214 F.3d 1022, 1025 (9th Cir. 2000); Prudential Real Estate Affiliates v. PPR Realty, Inc., 204 F.3d 867, 874 (9th Cir. 2000). "These two formulations represent two points on a sliding scale in which the required degree of irreparable harm increases as the probability of success decreases." Prudential Real Estate, 204 F.3d at 874. A request for a mandatory injunction, seeking relief well beyond the status quo, is disfavored and shall not be granted unless the facts and law clearly favor the moving party. Stanley v. Univ. of S. Cal., 13 F.3d 1313, 1319-20 (9th Cir. 1994).
B. Plaintiff's request for pain management
Plaintiff's motion for a preliminary injunction, while not clearly written, appears to request relief in the form of better pain management from prison medical staff. Because plaintiff's medical condition is chronic and serious enough to prevent him from walking without pain so that he is unable to go to meals, medication lines, and otherwise function normally, his Eighth Amendment claims of deliberate indifference on the part of prison personnel are ongoing.
The current preliminary injunction goes to the merits of this action. However, the record indicates that plaintiff is being treated with pain medication, and is being examined regularly by prison medical staff. (Defendants' Response (#48) at 2-3 Attach. 1.) While plaintiff attests that the pain medication he is receiving is not effective enough at alleviating his pain, and that his physician has missed several scheduled appointments, the balance of hardships does not tip sharply in his favor on this issue. To require prison medical staff to allow plaintiff unlimited access to prescription pain relievers not only raises serious security concerns, but also is not supported by the record, which indicates that plaintiff's treating physicians are concerned that plaintiff may be abusing his pain medication. (Id. at 3 Attach. 1.) A difference of medical opinion between a prisoner and his treating physicians regarding the appropriate course of treatment does not amount to deliberate indifference constituting an Eighth Amendment violation. Jackson v. McIntosh, 90 F.3d 330, 332 (9th Cir. 1996).
The facts and the law do not clearly favor the plaintiff on this issue; therefore, the court will not issue an injunction changing the status quo regarding plaintiff's pain management. See Stanley v. Univ. of S. Cal., 13 F.3d at 1319-20. Accordingly, plaintiff's motion for immediate medical care is denied as to this issue.
C. Plaintiff's request for orthopedic shoes
Plaintiff's motion for preliminary injunction also alleges that his specially made orthopedic footwear is periodically missing while it is being repaired, leaving plaintiff without appropriate shoes, and causing him to drag his bare foot to the point that his toes are rubbed until raw and painful sores form. Plaintiff attests, for example, that he received his orthopedic shoes on November 14, 2001, but due to dragging his right leg, as a result of his chronic partial spastic paralysis, the sole of the shoe rubs to the point of needing repair approximately every six weeks. (Plaintiff's Motion for Injunction (#38) at Lavender Aff., p. 2.) Further, plaintiff attests, his orthopedic shoes were taken away for repairs on December 21, 2001, and had not been returned to him as of January 16, 2002, the date on which he filed the current motion. (Id.)
Defendants argue that plaintiff's request for a preliminary injunction regarding this issue is moot, because the orthopedic shoes were returned to him on January 25, 2002. (Defendants' Response (#48) at 4.) However, during the March 19, 2002, telephone hearing on this motion, plaintiff testified to the court that the pattern of wearing out his shoes is a continuing issue, and it is immediately foreseeable that his shoes will wear out again in approximately six weeks, leaving him without appropriate, medically necessary, footwear. Plaintiff's injury is recurring, and while his orthopedic shoes cannot be obtained without expense to the ODOC, the balance of hardships tips sharply in plaintiff's favor with respect to this issue. Accordingly, plaintiff's motion for immediate medical care is granted as to this issue. Defendants are ordered to obtain a second pair of custom made orthopedic shoes for plaintiff, to be used while the other pair is being repaired.
IV. Plaintiff's Motion for Release to Obtain Medical Care.
In his motion for release, plaintiff asks this court to order that he be released so that he can obtain necessary medical care. Plaintiff alleges that the SRCI medical staff is incompetent, and is endangering his life, health, and safety. Habeas corpus is the exclusive remedy for a state prisoner who challenges the fact or duration of his confinement and seeks immediate or speedier release from custody. Heck v. Humphrey, 512 U.S. 477, 481 (1994) (citing Preiser v. Rodriguez, 411 U.S. 475, 488-90 (1973)); see also 28 U.S.C. § 2254. It is not clear, however, that plaintiff intends to bring a habeas corpus petition. Accordingly, this court will not convert plaintiff's § 1983 claim into a habeas petition. See Trimble v. City of Santa Rosa, 49 F.3d 583, 586 (9th Cir. 1995).
Even if plaintiff's request was clearly framed as a habeas corpus petition, a request for bail or release pending a decision in a habeas case is "reserved for extraordinary cases involving special circumstances or a high probability of success." Land v. Deeds, 878 F.2d 318 (9th Cir. 1989). A petitioner's failing health and need for medical attention would only be relevant if the petitioner required treatment that is unavailable through the state department of corrections. See In re Roe, 257 F.3d 1077, 1081 (9th Cir. 2001) ("district court clearly erred in relying on . . . [petitioner's] poor health as a relevant factor."). In this case, plaintiff has not alleged or shown that the treatment he requires is unavailable through the Oregon Department of Corrections, nor has he demonstrated that he is entitled to release under the standard set by the Ninth Circuit in Land. Therefore, plaintiff's motion for release is denied.
V. Plaintiff's Motion Requesting Medical Care Outside of SRCI.
Because plaintiff failed to serve his motion requesting medical care outside of SRCI (#58) on defendants, the court directed the clerk to serve a copy on defendants on June 4, 2002 (#59). Although the court is strongly considering ordering defendants to appoint an outside orthopedic specialist to examine plaintiff, his motion will be held in abeyance until June 18, 2002, to allow defendants to file a response.
VI. Plaintiff's Motion for Appointment of Counsel.
On January 29, 2002, this court granted plaintiff's prior motions for appointment of counsel (see #22 #39), and directed the clerk to request counsel from the panel of volunteer lawyers to evaluate plaintiff's case. On May 16, 2002, the court notified plaintiff that the attorney contacted declined to accept the case. While this court may request volunteer counsel in exceptional cases, it has no power to make a mandatory appointment. Mallard v. U.S. Dist. Court of Iowa, 490 U.S. 296, 301-08 (1989). Plaintiff's current motion for appointment of counsel (#60) is therefore DENIED.
CONCLUSION
Based on the foregoing, IT IS ORDERED that plaintiff's motions are resolved as follows:
a. plaintiff's motion/application for leave to proceed in forma pauperis (#21) is DENIED AS MOOT;
b. plaintiff's motion for order to show cause (#37) was not served on defendants; the clerk is DIRECTED to serve a copy on counsel for defendants, and defendants shall have 14 days from the date of this order in which to file their response;
c. plaintiff's motion for preliminary injunction (#38) is GRANTED IN PART; defendants are ordered to obtain a second pair of custom made orthopedic shoes for plaintiff, to be used while the other pair is being repaired;
d. plaintiff's motion for release to obtain needed medical care (#56) is DENIED;
e. plaintiff's motion requesting medical care needed outside SRCI is HELD IN ABEYANCE until June 18, 2002, to allow defendants to file a response;
f. plaintiff's motion for appointment of counsel (#60) is DENIED.
IT IS SO ORDERED.